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Weekly Update Volume 41, Issue 4

02/07/2011

LITIGATION

OIL DRILLING, CONTEMPT OF COURT:

A district court held DOI in contempt of court for imposing a second moratorium on deepwater oil drilling in the Gulf of Mexico after the court preliminarily enjoined the agency from enforcing the agency's original moratorium. Shortly after the Deepwater Horizon disaster, DOI issued a six-month moratorium against all companies involved in deepwater drilling in the Gulf of Mexico. In June, the court preliminarily enjoined the DOI from enforcing the moratorium, concluding that it was arbitrary and capricious and, therefore, unlawful. Each step the government took following the court’s imposition of a preliminary injunction "showcases its defiance" to the court order: the government failed to seek a remand; it continually reaffirmed its intention and resolve to restore the moratorium; and it notified operators that though a preliminary injunction had issued, they could quickly expect a new moratorium. Such dismissive conduct, viewed in tandem with the reimposition of a second blanket and substantively identical moratorium and in light of the national importance of this case, provides clear and convincing evidence of the government's contempt of the court's preliminary injunction order. Hornbeck Offshore Services, LLC v. Salazar, No. 10-1663, 41 ELR 20081 (E.D. La. Feb. 2, 2011) (Feldman, J.).

CLIMATE CHANGE, ENVIRONMENTAL REVIEW:

A California court issued a tentative ruling that would require the California Air Resources Board to set aside its "functional equivalent document" that evaluates the environmental consequences of its climate change scoping plan and to enjoin implementation of the scoping plan until the agency complies with its certified regulatory program and the California Environmental Quality Act. The scoping plan recommends a cap-and-trade program to reduce greenhouse gas emissions to 1990 levels by the year 2020. The court tentatively ruled that the agency abused its discretion in certifying the functional equivalent document for the scoping plan as complete because it failed to include any facts or data to support the conclusions stated in its alternatives analysis. In addition, the agency improperly approved and began implementing its scoping plan prior to completing the environmental review process. If finalized, the ruling could delay implementation of the state's climate change law--the Global Solutions Warming Act of 2006. Association of Irritated Residents v. California Air Resources Board, No. CPF-09-509562, 41 ELR 20080 (Cal. Super. Ct. Jan. 24, 2011) (Goldsmith, J.).

CAA, PERMITTING, JUDICIAL REVIEW:

The Third Circuit dismissed a petition for review of an EPA letter opining that facilities operated by a landfill and a neighboring energy company were under common control for purposes of air emissions permitting. The landfill owner challenged EPA's determination under CAA §307(b)(1), which provides for judicial review of any final action by the Agency. EPA's letter, however, is not "final" for purposes of judicial review because the letter was only one intermediate step in the permitting process. There is no way to know in advance whether the final permit that results from that process will incorporate the common control determination challenged here. Thus, a new permit, not intermediate decisions, will mark the "consummation" of the agency's decisionmaking process. In addition, EPA‘s decision does not contemplate immediate compliance, and EPA's decision has no effect on the petitioner's day-to-day operations, as it will continue to operate under the terms of its existing permits until a new permit issues. Moreover, the question of the validity of EPA's common control determination is not purely a legal one. Finally, immediate review would not speed enforcement of the CAA. To the contrary, it would delay further the permitting process. Ocean County Landfill Corp. v. United States Environmental Protection Agency, No. 09-2937, 41 ELR 20079 (3d Cir. Feb. 2, 2011).

ENERGY POLICY ACT, TRANSMISSION CORRIDORS:

The Ninth Circuit vacated and remanded DOE's energy transmission congestion study and national interest electric transmission (NIET) corridor designations prepared under the Energy Policy Act of 2005 (EPAct). The EPAct added §216 to the Federal Power Act, requiring DOE to prepare the congestion study "in consultation with affected States." Yet, here, DOE failed to consult with the affected states prior to issuing its study. This failure was prejudicial to the states, and so the study was vacated. The EPAct also required DOE to comply with NEPA in designating any NIET corridors. But DOE's statement that its designation of NIET corridors "does not significantly affect the quality of the human environment" is not supported by sufficient evidence to show that DOE has taken the requisite "hard look" at the environmental consequences. This failure was not harmless. Accordingly, the NIET corridor designations were vacated as well. California Wilderness Coalition v. U.S. Department of Energy, Nos. 08-71074 et al., 41 ELR 20078 (9th Cir. Feb. 1, 2011).

URANIUM MILL TAILINGS REMEDIATION AND CONTROL ACT:

The D.C. Circuit upheld the dismissal of a Native American tribe's case against DOE asking it to clean up two contaminated sites under the Uranium Mill Tailings Remediation and Control Act (UMTRCA). The sites, located on Navajo tribal land, were contaminated by Word War II and Cold War era uranium mining. The tribe therefore asked the DOE to remediate both sites under the UMTRCA, which creates a mechanism to clean up after such activities. The Act requires the DOE Secretary to designate uranium processing sites where remediation is required and to prioritize those sites. But the Act bars judicial review over such designations. Because this action falls within the UMTRCA's bar on judicial review, the case was properly dismissed. El Paso Natural Gas Co. v. United States, No. 10-5080, 41 ELR 20077 (D.C. Cir. Jan. 28, 2011).

CAA, SIP REVISIONS:

The Ninth Circuit granted citizen groups' petition for review of a final action by EPA approving in part and disapproving in part revisions to California's SIP for meeting CAA air quality standards for ozone. EPA's failure to order California to submit a revised attainment plan for the South Coast after it disapproved the 2003 attainment plan was arbitrary and capricious. In addition, EPA's approval of a "pesticide element" designed to reduce emissions from pesticide applications violates the CAA because the element lacks enforceable commitments. Finally, EPA violated the CAA by failing to require transportation control measures to combat the increase in vehicle miles traveled. EPA's approval was therefore remanded for further consideration. Association of Irritated Residents v. United States Environmental Protection Agency, Nos. 09-71383, -71404, 41 ELR 20082 (9th Cir. Feb. 2, 2011).

RCRA, ABSTENTION:

The First Circuit, in a case of first impression, vacated a lower court decision that it should abstain from hearing a RCRA citizen suit concerning the cleanup of contamination caused by leaking USTs at a former gasoline filling station in Puerto Rico. The pendency of parallel state administrative proceedings led the lower court to abstain from hearing the appellants' federal citizen suit, ordering dismissal on the authority of Burford v. Sun Oil Co., 319 U.S. 315 (1943). Among several "compelling reasons to abstain" cited by the lower court were Puerto Rico's interest in uniform and coherent regulation of USTs and the availability of adequate judicial review of a final administrative decision under Puerto Rico law. In light of the important federal interests at stake and the care with which Congress delineated the situations in which RCRA citizen suits will be barred, only exceptional circumstances could justify abstention. Because such circumstances are not present here, the district court erred in abstaining. Neither the diligent prosecution bar nor mootness can independently support the district court's dismissal of the suit. Chico Service Station, Inc. v. Sol Puerto Rico Ltd., No. 10-1200, 41 ELR 20083 (1st Cir. Jan. 26, 2011).

WETLANDS, JURISDICTION:

The Ninth Circuit amended dicta set forth in its prior opinion at 40 ELR 20233, which held that property owners and three employees of the California Department of Fish and Game did not violate the ESA when they dug up and removed Sebastopol meadowfoam--an endangered plant species--from privately owned wetlands. The amended language clarifies that although the court stated in Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 37 ELR 20202 (9th Cir. 2007), that Justice Kennedy's concurrence in Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006) provided the "controlling rule of law" for that case, the court did not foreclose the argument that CWA jurisdiction may also be established under the plurality’s standard in Rapanos. Northern California River Watch v. Wilcox, No. 08-15780, 41 ELR 20084 (9th Cir. Jan. 26, 2011).

NATIONAL FORESTS, ROADLESS AREAS:

A district court upheld the FWS' biological opinion and the U.S. Forest Service's EIS and record of decision for the Idaho Roadless Rule. The court therefore denied environmental groups' request to enjoin the rule and replace it with the nationwide roadless rule that was enacted in 2001. The Idaho roadless rule creates different categories of lands within Idaho's 9.3 million acres of inventoried roadless areas based on the specific attributes of those lands. Three categories provide more protection than the nationwide rule, whereas two categories allow more roads and logging than contemplated by the nationwide rule. The FWS' biological opinion discussed the effect of the rule on the grizzly bear and the caribou, both listed under the ESA, concluding that the adverse effects of more permissive rules for inventoried roadless areas could be serious for the grizzly bear and significant for the caribou. Nevertheless, the FWS discounted the potential for adverse effects in large part due to the Forest Service's commitments that road building in those areas was not reasonably certain to occur. Because there is no evidence casting doubt on these commitments, the FWS did not act arbitrarily in relying on those commitments. Nor did the Forest Service rely on an inaccurate assumption in estimating the impact of the Idaho roadless rule on logging and road building. The record shows that the Forest Service's projection of road building was based not only on levels existing under the nationwide 2001 roadless rule but also on the realities of budgets and the balancing of priorities. Although the Idaho roadless rule allows more roads, no evidence was offered to challenge the Forest Service's assumption that no roads will be constructed due to budgetary constraints. In addition, the Forest Service did not violate NEPA by failing to conduct a site-specific analysis of potential future phosphate mining operations in this area. A site-specific NEPA analysis for any future projects will be done at the time such a proposal is made. Jayne v. Rey, No. 4:CV 09-015-BLW, 41 ELR 20076 (D. Idaho Jan. 29, 2011) (Winmill, J.).

RCRA, SUBSTANTIAL AND IMMINENT ENDANGERMENT:

A district court ruled in favor of the defendant in a property owners' suit seeking to recover damages, cleanup costs, and a cleanup injunction resulting from environmental contamination on their property allegedly caused by an oil company. The owners failed to prove by a preponderance of the evidence that the contamination on their property poses a substantial and imminent endangerment to health or the environment under RCRA. At most their evidence shows that there is substantial contamination on the property and that the level of the contamination warrants some kind of screening risk assessment by the regulatory agencies. However, the owners fail to point to any testimony that someone or something may be exposed to a risk of harm by the contamination if remedial action is not taken. The property owners' claim for equitable contribution also failed. Underlying cleanup orders create a joint obligation upon the parties, but the property owners have failed to prove by a preponderance of the evidence that they have paid more than their fair share of that obligation. Sullins v. Exxon/Mobil Corp., No. 08-04927, 41 ELR 20085 (N.D. Cal. Jan. 26, 2011) (Wilkin, J.).

CWA, PERMITTING, TRANSFER:

A district court granted a motion to transfer the West Virginia environmental agency's action against EPA and the U.S. Army Corps of Engineers challenging their permitting processes for coal mining to the D.C. District Court for consolidation with another case filed by a mining industry trade association involving the same issues and defendants. Transfer and consolidation is warranted because all of the complaints challenge the same agency actions, they raise common questions of law and fact, they assert identical claims, and they seek identical relief. In addition, the considerable weight of West Virginia's forum choice cannot withstand the confluence of negative effects likely to result were the case to remain in the district court for the Southern District of West Virginia. The balance is thus struck strongly in favor of the defendants' request to transfer. Huffman v. United States Environmental Protection Agency, No. 2:10-01189, 41 ELR 20086 (S.D. W. Va. Jan. 31, 2011) (Copenhaver, Jr., J.).

SIP Proposals: California (VOC emissions for the Antelope Valley air quality management district and the Placer County, Santa Barbara, and Ventura County air pollution control districts; see above for direct final rule) 76 FR 5319 (1/31/11). Indiana/Ohio (disapproval of interstate transport submission) 76 FR 6376 (2/4/11).

ENERGY:

EPA proposed to allow refiners and laboratories to use an alternative test method for olefin content in gasoline. 76 FR 5319 (1/31/11).

HAZARDOUS & SOLID WASTE:

EPA seeks public comment on the addition of a vapor intrusion component to the Hazard Ranking System for CERCLA's NPL. 76 FR 5370 (1/31/11).

PESTICIDES:

EPA seeks public comment on proposed revisions to the rules under FIFRA on the protection of human subjects in research involving pesticides. 76 FR 5735 (2/2/11).

WILDLIFE:

FWS will reintroduce whooping cranes as a nonessential experimental population into historic habitat in southwestern Louisiana to establish a nonmigratory flock. 76 FR 6066 (2/3/11).

NOAA-Fisheries announced a 12-month finding on a petition to delist coho salmon south of the San Francisco Bay under the ESA; the agency found that delisting is not warranted and recommended extension of the area covered. 76 FR 6383 (2/4/11).

DOJ NOTICES OF SETTLEMENT:

United States v. Orval Kent Food Co., Inc., No. 2:11-cv-02057-JAR-JPO (D. Kan. Jan. 31, 2011). A settling CWA defendant responsible for discharges into a POTW in Baxter Springs, Kansas, must pay a $390,000 civil penalty, must increase monitoring of its discharges and install additional treatment, if necessary, and must undertake a fish restocking project at a cost of $32,500. 76 FR 6497 (2/4/11).

United States v. HOVENSA L.L.C., No. 1:11-cv-6 (D.V.I. Jan. 26, 2011). A settling CAA defendant responsible for violations at its petroleum refinery in St. Croix, U.S. Virgin Islands, must pay civil penalties and must perform injunctive relief to reduce emissions at the facility. 76 FR 5609 (2/1/11).

United States v. United Illuminating Co., No. 11-cv-121 (D. Conn. Jan. 24, 2011). Settling CERCLA defendants responsible for violations at the East Main Street Disposal Area site in New Haven County, Connecticut, must pay $464,000 in U.S. response costs incurred at the site. 76 FR 5609 (2/1/11).

S. 228 (Barrasso, R-Wyo.) (climate) would preempt regulation of, action relating to, or consideration of greenhouse gases under federal and common law on enactment of a federal policy to mitigate climate change. 157 Cong. Rec. S359 (daily ed. Jan. 31, 2011). The bill was referred to the Committee on Environment and Public Works.

S. 231 (Rockefeller, D-W. Va.) (climate) would suspend, until the end of the two-year period beginning on the date of enactment of this Act, any EPA action under the CAA with respect to carbon dioxide or methane pursuant to certain proceedings, other than with respect to motor vehicle emissions. 157 Cong. Rec. S359 (daily ed. Jan. 31, 2011). The bill was referred to the Committee on Environment and Public Works.

S. 232 (Levin, D-Mich.) (electric vehicle credit) would amend the Internal Revenue Code of 1986 to increase the manufacturer limitation on the number of new qualified plug-in electric drive motor vehicles eligible for credit. 157 Cong. Rec. S359 (daily ed. Jan. 31, 2011). The bill was referred to the Committee on Finance.

S. 233 (Baucus, D-Mont.) (geothermal leasing) would withdraw certain federal land and interests in that land from location, entry, and patent under the mining laws and disposition under the mineral and geothermal leasing laws. 157 Cong. Rec. S359 (daily ed. Jan. 31, 2011). The bill was referred to the Committee on Energy and Natural Resources.

S. 234 (Reid, D-Nev.) (oil spills) would amend title 49, U.S. Code, to provide for enhanced safety and environmental protection in pipeline transportation and to provide for enhanced reliability in the transportation of United States energy products by pipeline. 157 Cong. Rec. S359 (daily ed. Jan. 31, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

S. 264 (Cochran, R-Miss.) (federal land) would direct the Secretary of the Interior to convey to the state of Mississippi two parcels of surplus land within the boundary of the Natchez Trace Parkway. 157 Cong. Rec. S543 (daily ed. Feb. 3, 2011). The bill was referred to the Committee on Energy and Natural Resources.

S. 265 (Cochran, R-Miss.) (federal land) would authorize the acquisition of core battlefield land at Champion Hill, Port Gibson, and Raymond for addition to Vicksburg National Military Park. 157 Cong. Rec. S543 (daily ed. Feb. 3, 2011). The bill was referred to the Committee on Energy and Natural Resources.

S. 270 (Wyden, D-Or.) (federal land) would direct the Secretary of the Interior to convey certain federal land to Deschutes County, Oregon. 157 Cong. Rec. S543 (daily ed. Feb. 3, 2011). The bill was referred to the Committee on Energy and Natural Resources.

S. 271 (Wyden, D-Or.) (federal land) would require the Secretary of Agriculture to enter into a property conveyance with the city of Wallowa, Oregon. 157 Cong. Rec. S543 (daily ed. Feb. 3, 2011). The bill was referred to the Committee on Energy and Natural Resources.

S. 275 (Lautenberg, D-N.J.) (oil spills) would amend title 49, U.S. Code, to provide for enhanced safety and environmental protection in pipeline transportation and for enhanced reliability in the transportation of the nation's energy products by pipeline. 157 Cong. Rec. S543-44 (daily ed. Feb. 3, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

S. 278 (Udall, D-Colo.) (federal land) would provide for the exchange of certain land located in the Arapaho-Roosevelt National Forests in the state of Colorado. 157 Cong. Rec. S544 (daily ed. Feb. 3, 2011). The bill was referred to the Committee on Energy and Natural Resources.

S. 279 (Udall, D-Colo.) (federal land) would direct the Secretary of the Interior to carry out a study to determine the suitability and feasibility of establishing Camp Hale as a unit of the National Park System. 157 Cong. Rec. S544 (daily ed. Feb. 3, 2011). The bill was referred to the Committee on Energy and Natural Resources.

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2011, visit our list of Cumulative State Developments. For state material reported prior to 2011, visit the ELR Archives.

The Energy and Environment Cabinet proposed to amend 401 Ky. Admin. Regs. 10:30, Antidegradation policy implementation methodology. Changes will add considerations for cumulative impacts when calculating limits for de minimis discharges (those that will not consume more than 10% of the available assimilative capacity of a receiving stream) into high quality waters. There will be a public hearing on February 24, 2011, and the deadline for comment is February 28. Seehttp://www.lrc.state.ky.us/kar/401/010/030reg.htm.

LOUISIANA

Air:

The Department of Environmental Quality proposed to amend La. Admin. Code 33:III.2123, Organic Solvents; Emissions. Changes would replace language that was deleted in a previous rulemaking and would alter Louisiana's SIP. There will be a public hearing on February 22, 2011, and the deadline for comment is March 1. Seehttp://www.doa.la.gov/osr/reg/1101/1101.pdf (pp. 361-64).

Climate:

The Department of Environmental Quality proposed to amend La. Admin. Code 33:III.111, 211, 223, 501, 503, 523, 537, and 2132, Green House Gases. Changes would remove carbon dioxide from the list of pollutants that "need not be included in a permit application" and set thresholds for greenhouse gas pollutants. There will be a public hearing on February 22, 2011, and the deadline for comment is March 1. Seehttp://www.doa.la.gov/osr/reg/1101/1101.pdf (pp. 365-66).

NEW HAMPSHIRE

Air:

The Department of Environmental Services readopted Env-A 1000, Prevention, Abatement, and Control of Open Source Pollution. The regulation pertains to the burning of materials where the combustion is discharged directly into the air. The rule will take effect at the expiration of the interim rule, March 12, 2011. Seehttp://www.gencourt.state.nh.us/rules/register/2011/january-28-11.pdf (p. 6).

The Department of Environmental Services proposed to readopt Env-A 700, Permit Fee System. Amendments would add a definition of "regulated air pollutant" to clarify that for the purposes of the rule the term refers to toxic air pollutants, among other changes. There will be a public hearing on February 25, 2011, and the deadline for comment is March 7. Seehttp://www.gencourt.state.nh.us/rules/register/2011/february-4-11.pdf (pp. 3-4).

NEW MEXICO

Climate:

The Environmental Improvement Board amended N.M. Code R. §20.2.100, Greenhouse Gas Reduction Program. The regulations regulate greenhouse gas emissions statewide as an air pollutant and public nuisance through the imposition of an emissions cap. The rule takes effect January 1, 2013, or six months after N.M. Code R. §20.2.350 is no longer in effect, whichever is later. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii02/20.2.100new.htm.

The Department of Environmental Quality proposed to adopt Or. Admin. R. Chapter 340.053, pertaining to the permitting of graywater reuse and disposal systems. The regulation would establish a public policy to encourage the reuse of graywater, establish requirements for reuse for the protection of public health, and establish design and construction standards for reuse and disposal systems, among other rules. The regulation would define three types of graywater based on level of treatment and establish acceptable reuse activities, and create a three-tier permitting system based on volume of graywater produced. The deadline for comment is March 11, 2011. Seehttp://arcweb.sos.state.or.us/rules/February2011_Bulletin.pdf (pp. 7-8).

The Department of Environmental Quality proposed to adopt Or. Admin. R. Chapter 340.041, pertaining to the state's water quality standards. Changes would alter the human health toxics criteria based on fish ingestion method to be based on a fish consumption rate of 175 grams per day and revise intake credit rules to allow the department to take into account background pollutants, among numerous other changes. There will be several hearings throughout the state through February 16, 2011, and the last day for comment is March 23. Seehttp://arcweb.sos.state.or.us/rules/February2011_Bulletin.pdf (p. 8).

RHODE ISLAND

Water:

The Coastal Resources Management Council amended the Freshwater Wetland Rules and Regulations to make their format, context, and readability easier and more readily accessible to those subject to their requirements or interested in their application. Changes take effect February 17, 2011. Seehttp://sos.ri.gov/rules/index.php?page=details&erlid=6300.

UTAH

Air:

The Department of Environmental Quality proposed to amend Utah Admin. Code r. 307.328, Gasoline Transfer and Storage. Changes would increase standards in requirements that delivery trucks that service gas stations be vapor tight and that they be equipped to recover vapors. The deadline for comment is March 3, 2011, and the rule may become effective on April 6. Seehttp://www.rules.utah.gov/publicat/bull_pdf/2011/b20110201.pdf (pp. 28-32).

The Brazilian state oil company Petrobras will soon begin the process of carbon sequestration in its Lula oil fields to reduce the environmental impact of its deep water exploration. The oil fields, in the region known as the subsalt, contain large amounts of carbon dioxide (CO2) that will now be re-injected into oil reservoirs or sub-sea salt caverns rather than released into the atmosphere. "CO2 re-injection is common in the industry, but it is not common offshore and certainly not at this depth and pressure," said Petrobras engineer Rivadavia Freitas. Environmental regulators have instructed Petrobras not to release CO2 into the atmosphere. Re-injection into oil reservoirs would boost their productivity, but analysts say that it may lead to higher production costs, though sequestration may reduce equipment corrosion. When the sequestration platform is completed, the company could re-inject as much as one million cubic meters of CO2 per day. A recent article in the journal Science indicated that continued carbon release may have a profound impact on the country, as the 2010 Amazon drought suggested the region's vulnerability to rising temperatures. The drought was more widespread than the one in 2005, which had been deemed a "once in a century" event. River levels were at their lowest in a half century, and several tributaries were completely dry, destroying trees and damaging the forest's ability to absorb carbon. For the full story, see http://www.reuters.com/article/2011/02/03/us-petrobras-co-idUSTRE7124PJ20110203. For the story on the 2010 drought, see http://www.bbc.co.uk/news/science-environment-12356835.